How is acquired distinctiveness proved in Korea?

Jonghwan Choi, Managing Partner · Published 11 November 2026

Last verified 9 October 2026

Requirements and proof at a glance

As of October 2026.

The numbers for the period of use and for recognition surveys are standards of determination set by the Trademark Examination Guidelines. Article 33(2) of the Trademark Act contains no number for a period or a percentage. [1][5] The Addenda printed in the file of the Trademark Examination Guidelines (Established Rules No. 79 to No. 143) set the enforcement dates of those Established Rules. Those Addenda contain no applicability provision stating that the standards of Part 4, Chapter 9 apply from applications filed on or after a certain date. For the current MOIP Established Rule No. 5, no Addenda are posted at the Ministry of Government Legislation (법제처), and its statement of reasons for the amendment is a change of terms such as the name of the agency. [5]

Only trademarks under Art. 33(1), subparagraphs 3 to 7, are covered

Article 33(2) of the Trademark Act applies to trademarks falling under subparagraphs 3 to 7 of paragraph (1) of the same Article. [1] The five subparagraphs are as follows.

The common name of the goods under subparagraph 1 and a trademark used customarily in connection with the goods under subparagraph 2 are not included in Art. 33(2). [1] The Trademark Examination Guidelines also state that acquired distinctiveness through use is not recognized for trademarks under these two subparagraphs (Part 4, Chapter 9, 1.1). [5] The standards for deciding whether a trademark falls under each subparagraph are covered in “When is a mark rejected for lack of distinctiveness in Korea?“.

Subparagraph 7 was brought into Art. 33(2) by the amended Trademark Act (Act No. 19809) that entered into force on 1 May 2024. Before that, Art. 33(2) read “paragraph (1) 3 through 6”. [1][2] Act No. 19809 was promulgated on 31 October 2023 and, under Article 1 of its Addenda, entered into force on the date six months after its promulgation. Those Addenda contain no applicability provision for the amended Art. 33(2). [1] The Trademark Examination Guidelines state that subparagraph 7 is “in force from 31 October 2023”, but that date is the promulgation date. [1][5]

There is a ground for rejection that cannot be overcome even if the requirements of Art. 33(2) are met. Article 34(1) of the Trademark Act lists trademarks that cannot be registered “notwithstanding Article 33”. [1] Its subparagraph 15 covers a trademark consisting solely of the three-dimensional shape, color, combination of colors, sound, or smell that is essential to secure the function of the goods for which trademark registration is sought or of the package of such goods. In the case of services, it refers to cases essential for the use and purpose of the services. [1] The Trademark Examination Guidelines provide that a trademark consisting solely of color is to be rejected under Art. 34(1), subparagraph 15, if it is functional, even if it has acquired distinctiveness through use (Part 8, Chapter 2, 4.1). [5]

The Trademark Examination Guidelines take the view that trademarks such as a color, a sound without distinctiveness, or a smell can, in principle, be registered only when acquired distinctiveness through use is proved (Part 4, Chapter 9, 1.2). [5]

The requirements are use from before filing and recognition by consumers

The requirements of Art. 33(2) of the Trademark Act have two parts. The applicant must have used the trademark from before filing the trademark application. As a result, the trademark must have become “recognizable to consumers as a trademark indicating the source of goods of a specific person”. [1]

This wording comes from the amended Trademark Act (Act No. 12751) that entered into force on 11 June 2014. The earlier provision was Article 6(2) at that time. That provision required that the trademark be “remarkably recognized” as indicating whose business the goods are related to. [2] Article 2 of the Addenda to Act No. 12751 provided that the amended provision applies beginning with trademark applications or applications for registration of additional designated goods first filed after that Act entered into force. [2]

The Trademark Examination Guidelines place the degree of recognition between two provisions. They state that it is a level higher than the recognition of a trademark under Art. 34(1), subparagraph 13, of the Trademark Act and lower than the recognition of a well-known trademark (trademark widely recognized by consumers) under Art. 34(1), subparagraph 9 (Part 4, Chapter 9, 2.2.2). [5] Consumers here are the general consumers of and traders in the goods concerned. They do not need to recognize the name or title of the specific person. It is enough that they recognize an abstract source as an anonymous entity. However, a trademark identical or similar to the trademark in use must not be in use as an indication of source among traders in the goods concerned (same Chapter, 2.2.1). [5]

The geographical scope is, in principle, the whole country. However, the Trademark Examination Guidelines state that recognition in a certain region can also be accepted in view of the nature of the designated goods (Part 4, Chapter 9, 4.3). There is also a sentence stating that the case where some traders or consumers in some regions have come to recognize the trademark is regarded as one that can be accepted (same Chapter, 2.2.2). [5]

The Trademark Examination Guidelines set the time for determining acquired distinctiveness through use as the time when the decision on whether to grant trademark registration is made. The applicant must have used the trademark from before filing and must continue to use it until the decision on whether to grant trademark registration is made (Part 4, Chapter 9, 4.3). [5]

Use here means the use of a trademark as defined in Art. 2(1), subparagraph 11, and Art. 2(2) of the Trademark Act (Trademark Examination Guidelines, Part 4, Chapter 9, 2.1.1). [5] The current Art. 2(1), subparagraph 11, lists four acts in items (a) to (d). The first is displaying a trademark on goods or packages of goods. Displaying a trademark on advertisements for goods, price tags, or transaction documents, and exhibiting or giving wide publicity to it, is also included. [1] Subparagraph 11 as cited in this part of the Trademark Examination Guidelines is the previous wording with three items. It differs from the current provision, so the provision should be read in the Trademark Act. [1][5]

The trademark and goods actually used must be the same as those in the application

Article 33(2) of the Trademark Act allows registration “limited to the goods on which such trademark is used”. [1] The Trademark Examination Guidelines state that acquired distinctiveness through use is recognized only where the application is for the same trademark as the one actually used and for the same goods as those on which it was used. It is not recognized for a similar trademark or similar goods (Part 4, Chapter 9, 2.3.1). [5] This sameness is not physical identity but substantial identity. It refers to a trademark and goods that general consumers or traders can recognize as the same under the common understanding of trade (same place). [5]

Supreme Court Decision 2023Hu10453 Decided October 31, 2024 stated the standard for this requirement. An applied-for trademark that acquires distinctiveness through use is limited to the very trademark actually used, and acquisition of distinctiveness cannot be recognized for a trademark similar to it. However, long-term use of a trademark whose identity with the applied-for trademark is recognized is a factor that helps the acquisition of distinctiveness. [6] This decision cited the provisions as Art. 33(1), subparagraph 4, and Art. 33(2) of the Trademark Act. These Article numbers date from the wholly amended Trademark Act that entered into force on 1 September 2016, and the requirements of paragraph (2) as set out in the decision are the same as the wording of the current provision. The filing date is not stated in the decision. [1][6]

The same decision also stated the standard for a trademark used together with another mark. If the part that is identical to the applied-for trademark, or whose identity with it is recognized, “can be recognized separately while maintaining its independence as that part alone”, the record of its use can be taken as material for the determination. [6] In this case, the applied-for trademark consisted solely of a figure. The trademarks actually used all combined that figure with letters. The lower court found it difficult to see that the part corresponding to the applied-for trademark could be recognized separately within the trademarks used, and held that the record of their use could not be taken as material for determining whether the applied-for trademark had acquired distinctiveness. The Supreme Court accepted this holding. [6]

For position trademarks, the Trademark Examination Guidelines require the same point to be checked. The examiner must check whether the evidence submitted shows use in combination with another distinctive element or shows use of the position trademark applied for itself (Part 8, Chapter 5, 3.3). [5]

The applicant submits the supporting evidence

The Trademark Examination Guidelines provide that the person claiming acquired distinctiveness through use must submit the supporting evidence. Acquired distinctiveness through use is not presumed merely from the fact that there was a certain amount of advertising or from the fact that a similar trademark has been registered (Part 4, Chapter 9, 2.4.1). [5]

The matters to be submitted under the legislation are in Art. 28(7) of the Enforcement Rules of the Trademark Act. Where the trademark to be registered falls under Art. 33(2) of the Trademark Act, the applicant can submit the following seven matters, together with documents and articles of evidence proving them, to the Minister of Intellectual Property (지식재산처장). [4]

The Trademark Examination Guidelines give ten examples of supporting evidence (Part 4, Chapter 9, 2.4.2). [5]

Supreme Court Decision 2023Hu10453 Decided October 31, 2024 stated that the determination must be made by considering the following factors as a whole. [6]

• The period of use, the frequency of use and the continuity of use of the trademark
• The volume of production and sales and the market share of the goods bearing the trademark
• The method, frequency, content, period and amount of advertising
• The superiority of the quality of the goods
• The reputation and credit of the user of the trademark
• The degree and manner of competing use of the trademark

On the period of use, the Trademark Examination Guidelines state that, in principle, substantially non-competing and continuous use for 5 years or more can be considered an important basis for the determination. Even if the period of use is short, a large increase in sales, market share, recognition and the like can be taken into account (Part 4, Chapter 9, 2.1.2). [5]

The Trademark Examination Guidelines set three standards for consumer recognition surveys (Part 4, Chapter 9, 2.4.3 to 2.4.5). [5]

• Survey institution: In principle, the survey must be conducted by a reliable survey institution that has the required personnel and facilities. A polling institution registered with the deliberative committee on public opinion polls relating to election under Article 8-9 of the Public Official Election Act (공직선거법) is regarded as meeting this requirement. The same applies where an institution, association or the like with expertise in trademarks designs the survey and conducts it jointly with such a registered polling institution.
• Sample: The survey must cover actual or potential consumers of goods of the same kind, and the sample must be representative in terms of region, gender, age and the like. Where the number of respondents is 1,000 or more and the questions are fair and appropriate, reliability is regarded as high. Where the number of respondents is 500 or fewer, reliability is regarded as low.
• Result: The examiner is not bound by the survey result. However, where 50% or more of the respondents in a survey that meets the reliability requirements recognize the trademark as that of a specific person, the survey can be considered strong evidence.

The record of use is, in principle, assessed on the basis of the applicant’s own use. Where the applicant has acquired the rights in the trademark from the actual user, the actual user’s record of use can also be taken into account (Trademark Examination Guidelines, Part 4, Chapter 9, 4.4). [5]

The Trademark Examination Guidelines also set limits for the examiner. Supporting evidence can differ according to the actual state of trade in, or the nature of, the designated goods, so the examiner must not require excessive or unnecessary materials. Where it is clear that the trademark in use is widely known beyond the degree required by Art. 33(2) of the Trademark Act, some of the supporting evidence can be omitted (Part 4, Chapter 9, 4.2). [5]

The applicant submits the evidence, and the examination goes through a consultative examination and an examination committee

Where the examiner intends to make a decision to reject trademark registration, the examiner must notify the applicant of the grounds for rejection in advance (Trademark Act, Art. 55(1)). [1] The applicant can submit a written opinion within a period set by the examiner, up to 2 months (Enforcement Rules of the Trademark Act, Art. 50(2)). [4] Documents proving the content of the opinion are attached to the written opinion (same Article, paragraph (3), subparagraph 1). [4]

The written opinion is not the only route for submitting supporting evidence. Article 28(7) of the Enforcement Rules of the Trademark Act, described above, is in the Article on trademark applications and provides that the applicant can submit those matters and the documents proving them. This paragraph does not limit the time of submission to the time after the notification of grounds for rejection. [4]

The period set by the examiner can be extended at the request of the applicant (Trademark Act, Art. 17(2)). [1] An applicant who fails to submit a written opinion within that period can, within 2 months from the expiration date of the period, apply for continuing trademark-related procedures and submit a written opinion (Trademark Act, Art. 55(3)). [1] The period for submitting a written opinion and its extension are covered in “How do I register a trademark in Korea?“.

In determining a claim of acquired distinctiveness through use, the examiner must conduct a consultative examination by three examiners, including the head of the trademark team (Trademark Examination Guidelines, Part 4, Chapter 9, 3.1). [5] Where acquired distinctiveness through use is recognized in the consultative examination, the case is referred to the Examination Committee for Determining Acquisition of Distinctiveness through Use (사용에 의한 식별력 취득 판단 심사위원회), and the final decision is made according to its result (same Chapter, 3.2). [5]

Where acquired distinctiveness through use is recognized for a trademark, that fact is made public. Article 19(2), subparagraph 10, of the Enforcement Decree of the Trademark Act (상표법 시행령) provides that the matters published on publication of the application include a statement that the trademark “falls under Article 33 (2) of the Act”. [3] The Trademark Examination Guidelines provide that this matter is to be indicated in the publication of the application, the trademark register and the like (Part 4, Chapter 9, 3.3). [5]

An applicant who receives a decision to reject trademark registration because acquired distinctiveness through use was not recognized has two routes. One is re-examination. The applicant can request re-examination, after amending the designated goods or the trademark, within 3 months from the date on which the certified copy of the decision to reject trademark registration is served (Trademark Act, Art. 55-2(1)). [1] A written opinion can be submitted together with the request for re-examination (same Article, paragraph (2)). [1] The request cannot be made where, at the time re-examination is requested, there is already a decision to reject trademark registration following a re-examination. The same applies where an appeal against examiners’ decision to reject trademark application (trial against decision to reject) has been requested (proviso to paragraph (1) of the same Article). [1] A request for re-examination cannot be withdrawn (same Article, paragraph (4)). [1] Article 55-2 was newly inserted by the amended Trademark Act (Act No. 18817) that entered into force on 4 February 2023, and it applies from trademark applications filed on or after the enforcement date of that Act (Addenda to the same Act, Art. 2). [1] The other route is a trial. A trial can be requested with respect to all or part of the designated goods for which the decision to reject was made, within 3 months from the date on which the certified copy of the decision is served (Trademark Act, Art. 116). [1] The words “with respect to all or part of the designated goods for which a decision to reject is made” were also brought in by Act No. 18817. The amended Art. 116 applies from trademark applications or applications for registration of additional designated goods filed on or after the enforcement date of that Act (Addenda to the same Act, Art. 3). [1] Article 116 as in force until 3 February 2023 did not contain these words. [2] The period for requesting the trial can be extended once, by up to 30 days, at the request of a party or ex officio (Trademark Act, Art. 17(1), subparagraph 3). [1] For a person in an area with poor access to transport, such as an island or a remote area, there is one additional extension of up to 30 days (proviso to the same paragraph; Enforcement Rules, Art. 7). [1][4] Where the period for requesting the trial is extended, the 3 months for requesting re-examination also become the extended period (Trademark Act, Art. 55-2(1)). [1] The Trademark Examination Guidelines also assume cases where acquired distinctiveness through use is recognized in a trial or in litigation (Part 4, Chapter 9, 3.3). [5]

Art. 33(2) also applies to Madrid applications, but the procedure differs

An international application that designates the Republic of Korea as a designated Contracting Party is deemed a trademark application under the Trademark Act (Trademark Act, Art. 180(1)). [1] In that case, the date of the international registration is deemed the filing date of the trademark application. Where the Republic of Korea is designated subsequently, the date of the subsequent designation is the filing date of the trademark application (same Article, paragraph (2)). [1]

This is also the filing date used for “before filing an application for trademark registration” in Art. 33(2) of the Trademark Act. The reason is that Art. 180(2) deems the date of the international registration or the date of the subsequent designation to be the filing date of a trademark application under the Trademark Act. [1]

The procedure differs in three respects.

• The grounds for rejection are notified to the applicant through the International Bureau (Trademark Act, Art. 190(1)). [1]
• There is no application for continuing trademark-related procedures. Article 55(3) of the Trademark Act does not apply to an application for international trademark registration (Art. 190(2)). [1] This means that there is no route for continuing the procedure within 2 months after the period for submitting a written opinion has passed.
• There is no re-examination. Article 55-2 of the Trademark Act does not apply to an application for international trademark registration (Art. 193-2). [1] The route after a decision to reject trademark registration is the appeal against the decision to reject (Art. 116).

The scope of amendment is also narrower. Before the decision to publish the application, the designated goods of an application for international trademark registration can be amended only where a notification of grounds for rejection has been received (Trademark Act, Art. 185(1)). Amendment after the decision to publish the application is also limited to the designated goods (same Article, paragraph (4)). [1]

The Trademark Examination Guidelines mention use in foreign countries in relation to non-traditional trademarks in applications for international trademark registration. Acquired distinctiveness through use must be recognized on the basis of use in Korea. However, where materials on the fact of use in a foreign country are submitted, the determination can be made with reference to them (Part 9, Chapter 3, 3.2). [5] This sentence is in the chapter of Part 9 titled “Special provisions for the examination of non-traditional trademarks”. [5]

After registration, the issue can be raised again in a trial to invalidate trademark registration

Where a trademark registration violates Art. 33 of the Trademark Act, an interested party or an examiner can request a trial to invalidate trademark registration (Trademark Act, Art. 117(1), subparagraph 1). [1] Article 122(1) of the Trademark Act sets a period of exclusion (제척기간) of 5 years from the registration date for some grounds for invalidation. Article 33 is not in the list of those grounds. [1]

Loss of distinctiveness after registration is also a ground for invalidation. This is the case where, after the trademark is registered, the registered trademark comes to fall under any of the subparagraphs of Art. 33(1). However, the case where it comes to fall under paragraph (2) of the same Article is excluded (Trademark Act, Art. 117(1), subparagraph 6). [1]

What applicants should do

• In general, we suggest first comparing, before filing, the form of the trademark as actually used with the form of the trademark to be filed. For materials showing use in combination with letters or another figure, the question is whether that part alone is recognized separately.
• We suggest matching the designated goods to the goods on which the trademark has actually been used. Article 33(2) of the Trademark Act limits registration to the goods on which the trademark has been used.
• We suggest organizing the supporting evidence according to the seven matters in Art. 28(7) of the Enforcement Rules of the Trademark Act and the ten items in the Trademark Examination Guidelines. Materials showing use in Korea are at the center.
• An application through the Madrid route has no re-examination and no application for continuing trademark-related procedures, so we suggest preparing in advance the materials to be submitted within the period for submitting a written opinion.
• If a consumer recognition survey is conducted, we suggest designing the survey institution, the number of respondents and the structure of the questions to meet the standards of the Trademark Examination Guidelines.
• Use must continue until the decision on whether to grant trademark registration is made, so we suggest continuing to collect materials on use after filing.
• Please confirm the assessment of an individual case with a Korean agent.

FAQ

Can the common name of the goods be registered after long use?

Article 33(2) of the Trademark Act covers subparagraphs 3 to 7 of paragraph (1). The common name of the goods (subparagraph 1) and a trademark used customarily in connection with the goods (subparagraph 2) are not included. [1]

How many years of use are needed?

The Trademark Act contains no number for the period. The Trademark Examination Guidelines state that, in principle, substantially non-competing and continuous use for 5 years or more can be considered an important basis for the determination. Even if the period of use is short, a large increase in sales, market share, recognition and the like can be taken into account. [5]

Is a consumer recognition survey mandatory?

The Trademark Examination Guidelines list a consumer recognition survey as one of ten examples of supporting evidence. The examiner is not bound by the survey result. [5]

Does a record of use in foreign countries count as evidence?

Part 9, Chapter 3, 3.2 of the Trademark Examination Guidelines states that acquired distinctiveness through use must be recognized on the basis of use in Korea. Materials on the fact of use in a foreign country can be referred to if they are submitted. [5]

Can re-examination be requested if a Madrid application receives a decision to reject trademark registration?

No. Article 55-2 of the Trademark Act does not apply to an application for international trademark registration (Trademark Act, Art. 193-2). An appeal against the decision to reject can be requested (Art. 116). [1]

Can the record of use of a word trademark used together with a logo prove a word-only trademark?

The standard of Supreme Court Decision 2023Hu10453 Decided October 31, 2024 applies. The record of use counts as material only if the part that is identical to the applied-for trademark, or whose identity with it is recognized, can be recognized separately while maintaining its independence as that part alone. [6]

How DEFINE IP Law Firm handles this

At the pre-filing review stage, DEFINE IP Law Firm first checks which subparagraph of Art. 33(1) of the Trademark Act a trademark may fall under. In a case where acquired distinctiveness through use will be claimed, we compare, against the materials, whether the trademark and goods actually used are the same as those in the application. We organize the supporting evidence according to the items of the Trademark Examination Guidelines. For questions about claiming acquired distinctiveness through use in Korea, please write to contact@defineip.kr.

Sources

1. Ministry of Intellectual Property (지식재산처), Trademark Act (상표법), Act No. 21134, in force from 11 November 2025. Articles 2, 17, 33, 34, 55, 55-2, 116, 117, 122, 180, 185, 190 and 193-2, Addenda (Act No. 18817, Arts. 2 and 3; Act No. 19809). https://www.law.go.kr/법령/상표법 (verified 2026-10-09)
2. Ministry of Intellectual Property (지식재산처), earlier versions of the Trademark Act (상표법). Article 33 of the version in force from 15 March 2024 (Act No. 19711), Article 6 and Article 2 of the Addenda of the version in force from 11 June 2014 (Act No. 12751), Article 6 of the version in force from 31 January 2014 (Act No. 11962), Article 33 of the version in force from 1 September 2016 (Act No. 14033), Article 116 of the version in force from 18 October 2022 (Act No. 18999). https://www.law.go.kr/법령/상표법 (verified 2026-10-09)
3. Ministry of Intellectual Property (지식재산처), Enforcement Decree of the Trademark Act (상표법 시행령), Presidential Decree No. 35809, in force from 1 October 2025. Article 19. https://www.law.go.kr/법령/상표법시행령 (verified 2026-10-09)
4. Ministry of Intellectual Property (지식재산처), Enforcement Rules of the Trademark Act (상표법 시행규칙), Prime Ministerial Decree No. 2120, in force from 17 June 2026. Articles 7, 28 and 50. https://www.law.go.kr/법령/상표법시행규칙 (verified 2026-10-09)
5. Ministry of Intellectual Property (지식재산처), Trademark Examination Guidelines (상표심사기준), MOIP Established Rule No. 5, in force from 10 December 2025. Part 4, Chapter 9; Part 8, Chapters 2 and 5; Part 9, Chapter 3; Addenda; statement of reasons for the amendment posted at the Ministry of Government Legislation. https://www.law.go.kr/행정규칙/상표심사기준 (verified 2026-10-09)
6. Supreme Court Decision 2023Hu10453 Decided October 31, 2024 (대법원 2024. 10. 31. 선고 2023후10453 판결). https://www.law.go.kr/판례/(2023후10453) (verified 2026-10-09)